State v. Merrick

Decision Date25 July 2008
Docket NumberNo. 27334.,27334.
Citation257 S.W.3d 676
PartiesSTATE of Missouri, Plaintiff-Respondent, v. James D. MERRICK, Defendant-Appellant.
CourtMissouri Court of Appeals

Nancy A. McKerrow of Columbia, MO, for appellants.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jayne T. Woods, Asst. Atty. Gen. of Jefferson City, MO, for respondent.

JEFFREY W. BATES, Chief Judge.

James Merrick (Defendant) was charged by amended information with robbery in the first degree and armed criminal action (ACA). See §§ 569.020, 571.015.1 A jury found Defendant guilty of both charges, but made no sentencing recommendation because Defendant was a prior offender. See § 557.036.4(2) RSMo Cum.Supp. (2004). The trial court sentenced Defendant to a 30-year term of imprisonment for the robbery offense and a concurrent 10-year term of imprisonment for the ACA offense. On appeal, Defendant presents two points of error. First, he contends the trial court abused its discretion in overruling an amended motion for a new trial alleging that Defendant was prejudiced because jurors observed Defendant in shackles while being led in and out of the courtroom. Second, he contends the trial court plainly erred in giving Instruction No. 6, the verdict director for robbery in the first degree, because the instruction deviated from MAI-CR 3d 323.02 and its Notes on Use. Finding no merit in either contention, this Court affirms.

Defendant does not contest the sufficiency of the evidence. Viewed in the light most favorable to the verdict, the following evidence was adduced. On March 2, 2005, Diann Melton (Melton) was the store manager of the Delano Station Break in Cuba, Missouri. Around 7 a.m., Defendant entered the store. He was wearing a red and black coat and a black ball cap. He bought a cup of coffee and then left. Fifteen minutes later, he returned and asked Melton for four packs of cigarettes. When another customer entered the store, Defendant felt in his pocket. He told Melton that he had forgotten his money and would be right back.

When the other customer left, Defendant came back into the store. After Melton rang up the purchase, Defendant told her to give him all of the money. She looked up and saw that Defendant had a very shiny pistol in his hand. He pointed the gun at her and said, "I'm serious, I'm not joking and I'm not going to hurt you." Defendant demanded all of the money except the coins. While holding the pistol with his right hand, he picked up the bills with his left hand and put them in his coat. When Defendant reached the door, he stopped and told Melton that she was not to do or touch anything until he was out of sight. After he left, Melton called 911.

At trial, Melton identified Defendant as the robber. Melton remembered his face, which she had seen clearly for at least three minutes from about three feet away. Melton identified a coat and hat seized from Defendant's closet as "exactly like the coat and hat" that he was wearing on the day of the robbery. Melton also identified a "shiny" gun found under the seat of a car Defendant was driving as "the same type of gun that was pointed at [her] that day" by Defendant.

After the State rested, Defendant offered no evidence on his behalf. The jury found Defendant guilty on both charges, and this appeal followed. Additional facts necessary to the disposition of the case are included below as we address Defendant's two points of error.

Point I

In Defendant's first point, he contends the trial court abused its discretion in overruling his amended motion for a new trial because the jurors observed Defendant in shackles while being led in and out of the courtroom. Citing Deck v. Missouri, 544 U.S. 622, 634, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005), Defendant argues he was denied a fair trial because shackling in the presence of the jury is "inherently prejudicial." The following additional facts are relevant to the discussion of this issue.

Prior to trial, the trial court granted Defendant's motion to be tried without shackles in the presence of the jury so long as Defendant conducted himself properly. During trial, which lasted one day, Defendant was not shackled in the presence of the jury in the courtroom. Defendant was shackled while being transported to and from the courtroom. The sheriff's office took steps to make sure that Defendant was restrained only when he was out of the jury's view.

In Defendant's amended motion for new trial, Defendant added the allegation that "jurors had opportunity to observe defendant being removed from or to the courtroom in shackels [sic] and deputy supervison [sic]. This could have enfluenced [sic] the jury in its verdict against the defendant." At the hearing on the amended motion, defense counsel explained:

[W]e've learned through from [sic] some of the jurors that they observed the Defendant in shackles and under deputy's supervision being led into and out of the courtroom. I believe that there is a Supreme Court case, that I can't come up with off the top of my head, that the Defendant has a right to not be seen in shackles because it would prejudice the jury.

In response to this allegation, the following discussion took place:

[Prosecutor]: Your Honor, I think that there were great pains taken by the sheriff's office as I recall to make sure that while the jury was within view he was unrestrained and that was a point made prior to trial and I believe it was followed as far as I know.

. . . .

[Defense counsel]: There may have been great pains taken Your Honor but apparently it wasn't great enough. There were some jurors who did observe him in shackles. And again, as I said, there is a clear United States Supreme Court case law regarding shackles, the presence of the defendant in shackles as far as prejudicing the outcome.

[Prosecutor]: I don't think there are any affidavit[s] of testimony supporting that allegation Your Honor.

THE COURT: I didn't see any affidavits. I'm concerned about it because the court clearly recalls that this was taken up in chambers long before the jury was even here.

[Defense Counsel]: Yes sir.

THE COURT: I believe your client was back there, isn't that correct? And those were removed long before you came out here.

[Prosecutor]: That's accurate.

[Defense counsel]: He was also brought back to the jail for lunch. He was brought back from the jail after lunch. Going to the bathroom. There were numerous times when he was re-shackled and again, they did take great pains and they did a good job but apparently there was an episode where it wasn't great enough.

[Prosecutor]: Your Honor I don't think a mere allegation of that is sufficient.

[Defense counsel]: Your Honor if the court would grant some time to investigate this further, if it's going to be dispositive we would put full effort in obtaining affidavits.

The court denied the amended motion for new trial and proceeded with sentencing.

"The question of whether to grant a motion for new trial is left to the sound discretion of the trial court." State v. Parker, 208 S.W.3d 331, 335 (Mo.App. 2006). The trial court's decision is presumed to be correct and will be reversed on appeal only for an abuse of discretion. State v. Thompson, 147 S.W.3d 150, 155 (Mo.App.2004). "Judicial discretion is abused when the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." State v. Christeson, 50 S.W.3d 251, 261 (Mo. banc 2001).

The State contends that the trial court did not abuse its discretion in denying Defendant's request for a new trial because, at the hearing on the amended motion, the court was not presented with any evidence that one or more jurors actually observed Defendant in shackles. This Court agrees. "A bare assertion by defense counsel does not prove itself and is not evidence of the facts presented." State v. Smith, 996 S.W.2d 518, 523 (Mo. App.1999). The record here is devoid of any proof that any jurors actually observed Defendant in shackles, and an appellate court "will not speculate as to whether they did." Lytle v. State, 762 S.W.2d 830, 834-35 (Mo.App.1988); Smith, 996 S.W.2d at 523. Thus, Defendant failed to make the requisite showing that a juror actually observed him being escorted to and from the courtroom in shackles. State v. Smith, 944 S.W.2d 901, 917 (Mo. banc 1997); Smith, 996 S.W.2d at 523; State v. Clements, 849 S.W.2d 640, 646-47 (Mo. App.1993). The trial court did not abuse its discretion in denying Defendant's amended motion for new trial. Point I is denied.

Point II

In Defendant's second point, he contends the trial court plainly erred in giving Instruction No. 6, which was the verdict director for the first-degree robbery charge. Preliminarily, we must address the applicable standard of review. At the instruction conference, defense counsel said he had no objection to Instruction No. 6. This issue also was not included in Defendant's motion for new trial. Therefore, Defendant concedes that the matter is not preserved and requests plain-error review pursuant to Rule 30.20. The State, on the other hand, argues that defense counsel's "no objection" announcement waived all appellate review of the issue. In cases like this one involving alleged instructional plain error, the State's argument has no merit. See State v. Wurtzberger, 40 S.W.3d 893, 897-98 (Mo. banc 2001) (holding that an appellate court may engage in plain-error review, even though the complaining party's attorney expressly stated during the instruction conference that he had "no objection" to the later-challenged instruction).

To obtain plain-error relief, Defendant must demonstrate more than mere prejudice. State v. Cates, 3 S.W.3d 369, 372 (Mo.App.1999). An appellate court is authorized, in its discretion, to review for plain error affecting a defendant's substantial rights "when the court finds...

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